Wednesday, April 16, 2008

It’s all oxycodone to the court of appeals

To say that Jimmy Roger Lane was caught with the goods would be an understatement.

In one pants pocket he had 62 tablets of oxycodone , 17 tablets of hydrocodone and two plastic bags with a total of $4,128 in cash. In the other, he had $181 in cash and 28 tablets of Endocet, a combination of oxycodone and acetaminophen. In his garage, police found a plastic bottle with a dropper lid that contained 7.8 milliliters of liquid oxycodone.

Lane didn’t contest that he was guilty of one count of possessing oxycodone with intent to distribute it, but he was convicted of three counts on the theory that he had different types of the drug in three different locations.

That was a bit much for the Virginia Court of Appeals on Tuesday. The relevant double jeopardy inquiry is whether the defendant had a different intent for each stash, the court said in Lane v. Commonwealth. There was no evidence on that point and, “[w]ithout such evidence, we could only speculate as to whether location, packaging or different physical appearance would prove three separate intents,” the court said.

The question remains as to how much good a remand for resentencing on one count rather than three will do Lane. He did not appeal his conviction of four counts of distributing oxycodone.

He lost on the point that might have exonerated him on all the possession with intent counts. He contended that the search warrant that led to his arrest was defective because the only assertion in the affidavit as to an informant’s reliability was that he had “given information in the past that has led to the seizure of illegal narcotics.”

The court of appeals found that the “good faith” exception to the Fourth Amendment applied, although its analysis listed factors that appeared to go more to the observations alleged by the informant than to his reliability.